32 Fabien Girard et al.
Notes
1 The authors would like to thank Kim Mazenot and Benjamin Coudurier for their
research assistance. *All URLs retrieved on 1 September 2021.
2 COP CBD, Decision XIII/18, CBD/COP/13/25 (17 December 2016). The Mo’otz
Kuxtal Guidelines indicate that they “do not apply” to traditional knowledge
associated with genetic resources under the Nagoya Protocol on Access to Genetic
Resources and Benefit-Sharing (see Morgera, 2018).
3 Convention on Biological Diversity, adopted in Rio de Janeiro, Brazil, on 5 June
1992 and entered into force on 29 December 1993 (1760 UNTS 79). 196 contracting
parties.
4 COP CBD, Decision X/42. The Tkarihwaié:ri Code of Ethical Conduct to
Ensure Respect for the Cultural and Intellectual Heritage of Indigenous and Local
Communities, UNEP/CBD/COP/10/27 (20 January 2011), section 20.
5 Corte Constitucional de Colombia, Sentencia de revisión de tutela T-622/16 (2016).
6 https://www.ethnobiology.net/wp-content/uploads/Decl-Belem-Eng-from-Posey.
pdf
7 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992. The second of
the three Rio Convention, the UN Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification, Particularly in
Africa, Paris, 14 October 1994, also place a strong emphasis on the need to
protect, integrate, enhance and validate traditional and local knowledge, knowhow and practices ensuring, subject to their respective national legislation and/or
policies, that the owners of that knowledge will directly benefit on an equitable
basis and on mutually agreed terms from any commercial utilization of it or from
any technological development derived from that knowledge.
(Art. 17(c))
On the tension between “protecting” and “promoting” (in particular through
documentation and inventories for the purpose of environmental objectives), see
Savaresi, 2018, p. 39.
8 By convention, throughout the introduction, we use the designation instigated with
the CBD, bearing in mind that Indigenous peoples and local communities (the latter
being very diverse under the law – think of “peasants”, “farmers”, “forest- dependent
communities” (International Tropical Timber Agreement, 2006, Art. 1, r) – also
referred to as “ethnic groups living in forests” (CERD, UN Doc. CERD/C/THA/
CO/1-3)) have expressed different demands, pursued divergent agendas, and secured
different rights under international and domestic laws (Suagee, 1999; and Sajeva, this
book). At the same time, it cannot be denied that (i) there is a trend towards extending Indigenous peoples’ protection to non-Indigenous communities (see below); (ii)
small-scale communities that “do not fit the strict test of indigeneity” (Bessa, 2015,
p. 332), nevertheless, tend to be defined according to criteria that resemble those
retained for Indigenous peoples (UNEP/CBD/WG8J/7/8/Add.1, Annex “Advice and
Recommendations Arising From the Expert Group Meeting of Local- Community
Representatives”; also see Knox (2017, paras 52–58, 2018, para. 48)); (iii) firm foothold of Indigenous rights into the “indigenist rhetoric” has been strongly objected to
and an alternative foundation has been sought. “Stewardship” rhetoric may offer such
an alternative, with potentially less damaging imagery. Beyond this, and as Giulia
Sajeva puts it, “[b]iocultural rights rhetoric can sound more politically neutral and
hence be more widely accepted […]” (Sajeva, 2018, p. 126; also see Uddin et al., 2018,
p. 6). As Sajeva nevertheless stresses in Chapter 6 of this book, such move could prove
hazardous.
9 Legal recognition of ownership is limited to just 10%. It is well established that
the “gap between customary rights and legal title is largest in sub-Saharan Africa”
(Oxfam et al., 2016, p. 27).
Notes
1 The authors would like to thank Kim Mazenot and Benjamin Coudurier for their
research assistance. *All URLs retrieved on 1 September 2021.
2 COP CBD, Decision XIII/18, CBD/COP/13/25 (17 December 2016). The Mo’otz
Kuxtal Guidelines indicate that they “do not apply” to traditional knowledge
associated with genetic resources under the Nagoya Protocol on Access to Genetic
Resources and Benefit-Sharing (see Morgera, 2018).
3 Convention on Biological Diversity, adopted in Rio de Janeiro, Brazil, on 5 June
1992 and entered into force on 29 December 1993 (1760 UNTS 79). 196 contracting
parties.
4 COP CBD, Decision X/42. The Tkarihwaié:ri Code of Ethical Conduct to
Ensure Respect for the Cultural and Intellectual Heritage of Indigenous and Local
Communities, UNEP/CBD/COP/10/27 (20 January 2011), section 20.
5 Corte Constitucional de Colombia, Sentencia de revisión de tutela T-622/16 (2016).
6 https://www.ethnobiology.net/wp-content/uploads/Decl-Belem-Eng-from-Posey.
7 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992. The second of
the three Rio Convention, the UN Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification, Particularly in
Africa, Paris, 14 October 1994, also place a strong emphasis on the need to
protect, integrate, enhance and validate traditional and local knowledge, knowhow and practices ensuring, subject to their respective national legislation and/or
policies, that the owners of that knowledge will directly benefit on an equitable
basis and on mutually agreed terms from any commercial utilization of it or from
any technological development derived from that knowledge.
(Art. 17(c))
On the tension between “protecting” and “promoting” (in particular through
documentation and inventories for the purpose of environmental objectives), see
Savaresi, 2018, p. 39.
8 By convention, throughout the introduction, we use the designation instigated with
the CBD, bearing in mind that Indigenous peoples and local communities (the latter
being very diverse under the law – think of “peasants”, “farmers”, “forest- dependent
communities” (International Tropical Timber Agreement, 2006, Art. 1, r) – also
referred to as “ethnic groups living in forests” (CERD, UN Doc. CERD/C/THA/
CO/1-3)) have expressed different demands, pursued divergent agendas, and secured
different rights under international and domestic laws (Suagee, 1999; and Sajeva, this
book). At the same time, it cannot be denied that (i) there is a trend towards extending Indigenous peoples’ protection to non-Indigenous communities (see below); (ii)
small-scale communities that “do not fit the strict test of indigeneity” (Bessa, 2015,
p. 332), nevertheless, tend to be defined according to criteria that resemble those
retained for Indigenous peoples (UNEP/CBD/WG8J/7/8/Add.1, Annex “Advice and
Recommendations Arising From the Expert Group Meeting of Local- Community
Representatives”; also see Knox (2017, paras 52–58, 2018, para. 48)); (iii) firm foothold of Indigenous rights into the “indigenist rhetoric” has been strongly objected to
and an alternative foundation has been sought. “Stewardship” rhetoric may offer such
an alternative, with potentially less damaging imagery. Beyond this, and as Giulia
Sajeva puts it, “[b]iocultural rights rhetoric can sound more politically neutral and
hence be more widely accepted […]” (Sajeva, 2018, p. 126; also see Uddin et al., 2018,
p. 6). As Sajeva nevertheless stresses in Chapter 6 of this book, such move could prove
hazardous.
9 Legal recognition of ownership is limited to just 10%. It is well established that
the “gap between customary rights and legal title is largest in sub-Saharan Africa”
(Oxfam et al., 2016, p. 27).